February's Cases Up at Virginia Cases & Law

click on graphic to go to Virginia Criminal Law & Cases

In February the following were Affirmed:

Circuit Courts:

2
3
12
19
22

Appellate Judges:

None

In February, the following were Overruled:

Circuit Courts:

None

Appellate Judges:

Humphreys (by VaApp en banc)
Elder (by VaApp en banc)
Alston (by VaApp en banc)

Are We All Guilty of Compounding?

A while back, I was looking thru statutes and ran across this one:

§ 18.2-462. Concealing or compounding offenses; penalties.

A. Except as provided in subsection B, if any person knowing of the commission of an offense takes any money or reward, or an engagement therefor, upon an agreement or understanding, expressed or implied, to compound or conceal such offense, or not to prosecute therefor, or not to give evidence thereof, he shall, if such offense is a felony, be guilty of a Class 2 misdemeanor; and if such offense is not a felony, unless it is punishable merely by forfeiture to him, he shall be guilty of a Class 4 misdemeanor.

The "or not to prosecute therefore" is the interesting part. Who among those of us that work in criminal law hasn't said to a victim (particularly a merchant), "If Client pays you restitution for the items broken/stolen/eaten, would you be satisfied?" And, if we are asking the victim not to prosecute, are we not principals in the second degree?

January's Cases Up at Virginia Criminal Cases & Law

click on graphic to go to Virginia Criminal Law & Cases

In January the following were Affirmed

Circuit Courts Affirmed

2
3
8
10
17
19
23

Appellate Judges Affirmed

Alston
Bumgardner
Elder (2 cases)

Circuit Courts Overruled

4
8
11
16
18 (3 cases)
21

Appellate Judges Overruled

Per Curiam (2 cases)
Alston (1 case by en banc VaApp)
Beales
Haley
Humphreys (1 case from VaSC, 1 case by en banc VaApp)

Mario is at Fault

(click on the news article)

via Geeks are Sexy

Emergency Taxicab Legislation

I was checking to see if any legislation had made it all the way through both houses of the Virginia General Assembly and had been signed by the governor. Only one bill has made it all the way through:

[H 1426]
Approved February 4, 2011

Be it enacted by the General Assembly of Virginia:

1. That § 46.2-2059.1 of the Code of Virginia is amended and reenacted as follows:

§ 46.2-2059.1. Roof signs and markings for taxicabs.

Every motor vehicle operating in the Commonwealth as a taxicab or performing a taxicab service shall bear a roof sign and markings (i) the word or words "taxicab," "taxi," or "cab," permanently affixed to its exterior, in letters at least three inches in height identifying, and (ii) a roof sign. Such markings and roof sign, taken together, shall clearly reflect that the motor vehicle is operating as a taxicab or performing a taxicab service.

2. That an emergency exists and this act is in force from its passage.

This is a change from

§ 46.2-2059.1. Roof signs and markings for taxicabs.

Every motor vehicle operating in the Commonwealth as a taxicab or performing a taxicab service shall bear a roof sign and markings, permanently affixed to its exterior, in letters at least three inches in height identifying the vehicle as a taxicab.

Okay, I don't really have any problems with the legislation. All it really does is clarify the statute.

However, I do have to wonder why this was so important that it was rushed through the process and is such a state of emergency that it immediately went into force upon passage (as opposed to 01 July when all the laws about drugs and violence will go into affect). Were signs on the top of cabs too high and flying off as they drove? Were officers writing tickets every 3 mintues because cabs weren't following this exactly? Por que?

Signs that I Read too Much Science Fiction

I'm reading through a police report and in the section describing the defendant I see this section:

Ethnicity:
H . . . . . NH . . . . . U

As I sit there looking at it, the first thing that pops into my head is "Human . . . Non-Human . . . Unknown."

Now, that's a police department which is prepared for everything. Heck, when the Martians come the department won't even have to change its paperwork.

The Loudon Opinion: Failing the Nelson Test

Judge Worcester incorrectly adopts the framework of his opinion from Nelson. It is in three parts. (1) The opinion is at odds with precedent previously established, and (2) The opinion infringes on the interposition of legislative power, and (3) The opinion causes confusion.

Part 1 - Precedent: The judge lists a number of Virginia cases in which writs of coram vobis were denied because they were sought for errors of judgment or upon facts known during the trial. He therefore claims that the limitation set by the Virginia Supreme Court is at odds with precedent when it limits the facts which can be addressed under the writ to only those affecting jurisdiction.

The strongest support Judge Worcester can find is a 57 year old US Supreme Court case interpreting federal procedure on an appeal from a federal trial court. U.S. v. Morgan, 346 U.S. 502 (1954) would certainly be helpful if it had any precedental value in Virginia or if it addressed Virginia procedure and law. Unfortunately, it does not. The writ of coram vobis is a common law procedure ruled entirely by the common law of each individual state within that state's borders. A US Supreme Court ruling on the federal common law in its own courts only applies to federal courts.

The problem Judge Worcester is trying to get around here is that the Virginia Supreme Court did not abruptly limit the writ to scrivener's errors and facts affecting jurisdiction at the beginning of 2011 in Morris. This has been a longstanding theme in Virginia's case law on coram vorbis. As far back as Richardson's Ex'x v. Jones, 12 Gratt. (53 Va.) in 1855. The language is not as precise as one might wish, but it seems to hold to the same standard as the Supreme court stated in Morris:

This writ lies where some defect is alleged in the process or the execution thereof [jurisdiction], or some misprision of the clerk [scrivener's or purposeful error], or some error in the proceedings arising from a fact not appearing upon their face, as where judgment is rendered against a party after his death, or who is an infant or feme covert [jurisdictional].

Even worse for Judge Worcester's position is the fact that the language which led to the opinion in Morris was not original to that opinion. Instead, it came from Dobie v. Commonwealth, MAR57, VaSC No. 4643:

It lies for an error of fact not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment.

Thus, the judge's opinion is actually the one swimming upstream against precedent.

Part 2 - Interposition: In this section the judge's problem is that, unlike in Nelson, there is no interposition of legislative action here. As discussed previously, in Nelson the interposition of legislative action between two sets of case law required the Virginia Supreme Court to overrule its own precedent when the second set of case law contradicted the interposed statutory changes. This is not the current situation.

Judge Worcester approaches this in a clever fashion. He claims that the lack of legislative action freezes all case law exactly where it was in 1776. Thus, any decision by the Virginia Supreme Court which does not follow exactly the common law of England or follow exactly the statutory law infringes upon the legislature's possible interposition of a statute affecting the common law.

Of course, if that interpretation was generally adopted it would have the effect of making all Virginia appellate opinions meaningless. There would only be two sources of law: English legal publications prior to 1777 and statutes passed by the General Assembly. If that's the case we don't have to worry much about stare decisis anymore. However, we might have to pay our General Assembly members to be permanently in Richmond so that they can get some sort of Napoleonic Code written and constantly be available to write the constant corrections and expansions which have, until now, been handled by the evolving common law.

Part 3 – Confusion: Here the judge claims that, because the Virginia Supreme Court did not overrule the cases wherein the writ was denied because they were sought for errors of judgment or upon facts known during the trial, there will be confusion. However, the Morris case didn't overrule the prior cases. At worst it can be said that it narrowed them. In any event, the ruling in Morris could not be any clearer. No writ of coram vobis will lie except where there is a scrivener's error or a fact not known at time of trial which would have made it impossible for the court to render judgment. That's a very simple holding which everyone can understand.

Collateral, Eventual Consequences

Judge Worcester also relies on Rule 7C:6(a) to bolster his opinion.

A court shall not accept a plea of guilty or nolo contendere to any misdemeanor charge punishable by confinement in jail without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea. Before accepting a plea to such a charge, the court shall inform the accused that such a plea constitutes a waiver of the right to confront one's accusers and the right against compulsory self-incrimination.

The pertinent part is that the court can't accept a guilty plea unless the defendant understands the consequences of the plea. Judge Worcester stretches this to the point that it reaches ineffective assistance of counsel under the right to counsel in the 6th Amendment. The problem is that the second sentence, not included in the Worcester opinion, indicates the consequences which are being spoken of are not collateral, eventual consequences, but immediate trial court consequences. This is also common sense as the immediate concern addressed by this rule is to insure a procedurally fair hearing and it is impossible for a defense attorney or judge to conceive and warn of all possible collateral, eventual consequences.

(Post 3 of 4: final post at 9 a.m. Tuesday)

The Loudon Opinion: Using Nelson v. Warden

The Judge in Loudon County mistakes the meaning and scope of Nelson v. Warden, SEP01, VaSC No. 002301. This is the gateway and framework for his decision to disobey the Virginia Supreme Court's holding in Commonwealth v. Morris, JAN11, VaSC No. 092163 & 092346.

To begin, let's show all the parts of Nelson which talk about stare decisis.

In Virginia, the doctrine of stare decisis is more than a mere cliche. That doctrine plays a significant role in the orderly administration of justice by assuring consistent, predictable, and balanced application of legal principles. And when a court of last resort has established a precedent, after full deliberation upon the issue by the court, the precedent will not be treated lightly or ignored, in the absence of flagrant error or mistake.

Our strong adherence to the doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an incorrect application of the law.

Under the doctrine of stare decisis, we are not obliged to uphold a decision that is itself at odds with precedent previously established by this Court after full deliberation upon the issue that fails to give proper effect to the interposition of legislative power and that has produced confusion.

Its rather clear that the Virginia Supreme Court is talking about its ability to change precedent, not laying out a means for lower courts to ignore its rulings. “When a court of last resort . . . the court . . .” and “we are not obliged . . . precedent previously established by this Court . . .” is not language which encompasses lower courts. Nothing in this language gives a general district court judge the authority to not follow clear precedent set out by the high court.

The case could be applied by analogy to the highest court to have decided a matter. For instance, if an issue has never been decided in a court higher than the Virginia Court of Appeals the Court of Appeals becomes the de facto court of last resort for that issue and could change its precedent using Nelson. The same could be true if a Circuit Court has decided an issue which has never been addressed by any appellate courts. However, this is a case where a much higher court has made the decision, so Nelson does not even apply by analogy.

Furthermore, the trial judge isn't actually following the precedent set out in Nelson. Simply put, the precedent in Nelson is as follows.

Date 1: Statute = A, Caselaw[1] = A (following current statute)

Date 2: Statute = B (changed by General Assembly) Statute DOES NOT = A

Date 3: Caselaw[2] = A (following Caselaw[1] )

Date 4: Caselaw[2] changed when Court realizes Statute = B
Statute = B, Caselaw[2] = B

This is not the pattern the trial judge argues. Basically, the trial judge's argument is:

Common Law = A
Legislature does not abrogate common law.
Common Law = A

(Post 2 of 4: Post 3 at 6 p.m. Monday)

Judge Dean Worcester: Compassionate Instincts, Bad Law

The Chief Judge of the General District Court of Loudon County, Virginia now stands in open defiance of the Virginia Supreme Court. He does this with the purest motives: the desire to temper law with mercy. As well, he is not doing it in the sub rosa fashion often seen in trial courts where judges rule contrary to binding precedent secure in the knowledge that most parties will not bother to attempt appeal or have the Virginia appellate courts agree to hear the appeal if it is attempted. No, Judge Dean Worcester has laid out his position clearly in a written opinion for the entire world to see. His instincts and openness are to be lauded.

The problem is that, no matter how noble his position may be, his opinion is badly askew from Virginia law and precedents.

This all rises out of collateral consequences from convictions. The US Supreme Court has declared that defense attorneys must be experts in immigration law so that they can counsel any clients they have who are not US citizens what immigration consequences will follow if the defendant is found guilty. Not surprisingly, attorneys who do not spend their lives intertwingled with labyrinthian immigration laws have missed rather insane portions of that law such as the fact that a misdemeanor domestic assault is an aggravated felony under immigration law. Thus, completely competent attorneys have given excellent advice on possible actions the defense can take in court and the direct consequences of those actions (“If you plead not guilty and are found guilty you will probably get X. If you take the plea offer you will get Y. There are 0/1/2/3 serious flaws in the prosecutions case and if we go to trial Z is the best tactic.”). Nevertheless, these criminal attorneys are incompetent if they do not know how a conviction of each and every particular statute in the Virginia Code will be interpreted under federal immigration law.

On the other hand, there have been harsh immigration consequences imposed upon individuals trying to live legally as aliens in the US. Years after they have committed rather minor offenses the federal government is deciding to throw them out of the country. Somehow, the inequity of allowing people to take root and become functioning members of society before deciding to throw them out over an offense several years past isn't coming home to roost where it should. Crowds with pitchforks and torches aren't descending on ICE or whatever congressional sub-committees rule over it; the federal system isn't taking any of the heat for being broken. Instead, it is sending the people it is wronging back to the State courts and telling them to get their immigration problem fixed there.¹ The State courts, which did absolutely nothing wrong in their straight forward determination of guilt as to the original charge are being leaned on by the feds to fix a federal problem by altering their entirely legally correct finding or punishment. This is the rather impossible situation that has been dumped on the Virginia legal system.

In Virginia, attorneys for these put upon aliens looked for some way to get around (1) the fact their defendants had been found guilty, and (2) the STRONG presumption of finality in all cases finished. Virginia's judicial system isn't quite as final as it used to be. Semi-recent developments have created a writ of actual innocence and stopped the appellate courts from punishing an appellant by permanently denying a petition of appeal if the appellant's attorney made technical errors in the petition. However, neither of these were helpful to the attorneys' clients. In fact, there is nothing in Virginia's statutes or the Virginia Supreme Court's Rules which allow an alteration of a guilty finding or punishment after a certain time – time which had long passed. So, the attorneys got creative. They went to ancient writs and started using them in Virginia courts under the claim that these writs, coram vobis in particular, allow the original trial court to reopen cases and alter their outcome.

As you might expect, when some judges started to agree with these defendants' attorneys, the local prosecutors were not thrilled. People were being allowed to reopen long closed cases without any claim that they not guilty, but only a claim that the an outside force, the federal government, was imposing collateral consequences. It seems a little harsh for the prosecutors to try and uphold the integrity of the Virginia legal system in the face of federally imposed harm on these individuals. However, if one considers the bigger picture it does make sense.

If the writ of coram vobis is allowed to continue to be used in this manner, it means there is absolutely no finality to any conviction. If tied to the whims of the federal supreme court, every time the that court changes a constitutional standard there will be a wave of defendants back in court under writs of coram vobis claiming they received ineffective assistance of counsel and therefore should have their conviction and sentence reviewed (nothing says coram vobis is limited only to those out of prison). Convicted pre-Gant, after a defense attorney tells you “Yes, they can search your car after they arrest you”? The actual, correct interpretation of the 4th Amendment is a fact not known to the judge and you can come back to court under the writ.

Even worse would be the tying of the writ to unforeseen collateral consequences. Every single conviction has some sort of unforeseen consequence. It's impossible for the defense attorney to foresee and warn the defendant about all of them, or even most of them; inability to get a job, child custody issues, inability to get a visa to a foreign country, denial of admission to a college, refusal of the government to give an art grant, inability to enter a high school to attend your kids' play, &cetera. If the existence of an unforeseen or unwarned collateral consequence is all that is required the writ will allow defendants to come back over and over and over again.

(Post 1 of 4: 2d post at 3 p.m. Monday)

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¹ In fact, the cases which have gone to the Virginia Supreme Court got there because the federal system gave them a period of time to try and alter the Virginia convictions. This is clearly dumping a problem on others rather than fixing it at the source.

Can't Enforce Speed Limit From the Air

or can you:

Judicial Freeze: What Will the General Assembly Do Now?

Yesterday, as a the shock of Justice Hassell's passed through the Virginia legal community, I started to hear another question: Will the General Assembly stick to its guns and not appoint a new Justice? I had decided not to address the issue because it felt sort of crass. Then someone pointed out to me that the General Assembly is already in the process of interviewing replacements for Justice Koontz, who retired at the end of the last year.

Are you kidding me? You've got to be kidding me.

Look, the work at the Supreme Court remains largely the same, no matter how many Justices you have. Every Justice is supposed to read every brief, attend every argument, and take part in the decision. Of course, fewer Justices means that each Justice will have to write a few more opinions, but how does that compare to trial judges?

I've discussed previously how busy the trial judges in certain jurisdictions have gotten. Additionally, the judges in these circuits often have to travel between courthouses making it even harder for them to get their work done. If the General Assembly is going to replace anyone, it doesn't need to replace Justices before it replaces trial judges in the 11th juvenile court district and the 30th circuit court.

The Virginia Lawyers Weekly reports that the Senate has fully funded all the empty judicial slots and the House has not funded a single empty judicial slot (not sure if that includes Justices). The House has also pushed the current, dubious judicial redistricting plan out of committee and passed it while the Senate let it die it committee with a promise from the Supreme Court of Virginia to talk to everybody and come up with some miraculously perfect plan (current plan, my attempt). The current plan seems to be an attempt to even out places with too many judges and those with too few. It doesn't seem to take things like geographical realities into account.¹ In any event, I have hopes that the two houses will meet somewhere in the middle and fill at least the most desperately needed third of the empty judicial slots (perhaps in this manner). I wish I could say they were expectations, but at this point I think we are all stuck with hopes.


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¹ Not that I think the "let everybody have their say", kumbaya approach will work either. Inertia, the pain of changing alignments, and sheer emotional attachments will make doing this without breaking a few eggs impossible. This is something that would have to eventually be championed and pushed through the General Assembly despite much opposition. I would just hope that when it is actually done the circuits would be more rational than the current proposal.

Leroy Rountree Hassell Sr., Rest in Peace

Justice Leroy Hassell Sr. died this morning. Justice Hassell was the first Chief Justice selected by his peers and was a very active Chief Justice. You might like or dislike the things he did, but you had to admire the man's drive to remake Virginia's judicial system in ways he thought better.

All-powerful and merciful God, we commend to you, Leroy Rountree Hassell Sr., your servant. In your mercy and love, blot out all the sins he has committed through human weakness. In this world he has died: let him live with you for ever.
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You Have To Go Pretty Far to Get This From the 4th Circuit

From Judge Wilkinson, no less:

Qualified immunity is meant to protect against liability for “bad guesses in gray areas.” This was not a bad guess. Not a single one of the officers' proffered rationales provides a reasonable, particularized basis to justify their conduct. The officers contended at oral argument that a no-knock entry under these circumstances is “so infrequent, so uncommon that it's a gray area.” To the contrary, we face here an unfortunate exception to the truism that “[t]he easiest cases don't even arise.” The absence of “a prior case directly on all fours” here speaks not to the unsettledness of the law, but to the brashness of the conduct. Because “a man of reasonable intelligence would not have believed that exigent circumstances existed in this situation,” we affirm the district court's holding that this no-knock entry violated the Bellottes' clearly established constitutional rights and does not warrant an award of qualified immunity.

Bellotte v. Edwards, JAN11, 4Cir No. 10-1123.

With Tongue Firmly in Cheek (4Cir)

The federal 4th Circuit is discussing how the US Attorney may have given evidence to a defendant without it reaching the attorney who actually tried the case:

We recognize that some information may have failed to reach King's trial counsel, given that King changed attorneys three times and that his escape from custody forced the court to reschedule the trial.

I think this is Judge Motz's polite way of saying, "Screw around with us, you yutz, and we ain't giving you the benefit of any doubt."

U.S. v. King, JAN11, 4Cir No. 07-4855

Video of Gang Fight

Gang bangers will use any weapon to get an advantage in a fight.

SuperGran to the Rescue

A bunch of robbers attack a jewelry store and everybody stands around and watches until SuprGran comes flying in from the right side. Here's the video:

Writ of Coram Vobis (Nobis)

I was looking around the internet when I ran across a post by Mirriam Seddiq decrying the Virginia Supreme Court's decision to not allow the common law writ of coram vobis (also known as coram nobis) to be used to change sentences so that two defendants, who pled guilty to charges which could result in their deportation, would not be deported. Here's my synopsis of the decision:

Commonwealth v. Morris, JAN11, VaSC No. 092163 & 092346
Opinion: Lemons
Trial Judge: Haddock, 18VaCir (overturned) Trial Judge: Morrison, 4VaCir (overturned)
(1) The writ of Audita Querela is writ only available for use in civil cases and cannot be used to modify a criminal sentence. (2) A writ of Coram Vorbis is only available if (a) it's for an error of facts not apparent on the record, and (b) the error is not attributable to the applicant, and (c) if the error had been known to the judge it would have prevented rendition of judgment. (3) A writ of coram nobis cannot proceed from new evidence or facts. (4) Coram nobis can only correct (a) clerical errors, and (b) errors of fact. (5) Errors of fact must not merely be enough to render the conviction voidable, they must make it impossible to render a judgment. (6) Ineffective assistance of counsel does not fall within the bounds of a writ of coram nobis.

The criminal defense lawyers didn't know immigration law. One defendant's lawyer did not realize that a permanent resident could be deported for a felony conviction and another defendant's lawyer did not realize that a misdemeanor domestic assault and battery would count as an aggravated felony for immigration purposes. Of course, the guilty pleas and convictions happened several years before (at least 4 years) the federal government decided to expel the individuals. There is no solution to this under Virginia law. The Rules of the Supreme Court of Virginia declare a conviction order finalized, and therefore unchangeable, after 21 days. A direct appeal of a case must commence within 30 days of the conviction. A habeas must start within a year of the conviction order (or the last order dealing with the appeal). Federal habeas must start within two years of the conviction order (I think). In other words, there is no relief available. Therefore, the defendant tried to use holdovers from the common law.

In fact, over the last few years the writ of coram nobis has become a popular technique which defense attorneys have tried to use to get trial courts to alter sentences after the courts have lost jurisdiction. It has had some legs to it for a couple reasons. Many times it has found trial judges who haven't dealt much with this common law writ and don't understand that in Virginia coram nobis is available only under extremely limited circumstances. At other times it has been a convenient way to wink and nod something through the system that isn't actually allowed.

I'm not sure which happened in the two cases the Virginia Supreme Court overturned. There was no legal remedy for either case - all the final dates had passed and the writ of actual innocence was not available because the defendants were guilty. The defendants got judges to alter the sentences of guilty individuals because of collateral consequences. The standard enforced by the Supreme Court isn't a new one, the extant case law clearly set out the standard: Coram Nobis only fixes scrivener's errors and errors of fact which make the judgment void ab initio.

The decision may lead to unpleasant consequences, but it's not wrong. In particular, I have some sympathy for the defendant who pled guilty to a misdemeanor and later found out that it was an aggravated felony under federal immigration law. This is more proof of my previous statement that Padilla sets a standard unreachable by a typical defense attorney. After all, what would normally be your answer if a defendant asked you if a misdemeanor was a felony? Nevertheless, the general Assembly has chosen not to give any court the ability to alter a sentence based upon collateral consequences.

I have mixed feelings about this. At first blush, I am pleased that coram nobis has been shut down. I've not seen it abused where I currently practice, but before I moved out here I was starting to see it pop up more and more in trials courts where I previously practiced. I never saw it succeed and I was actually quite annoyed by it. Primarily, I saw it being used by certain defense attorneys as a way to take money from convicts families to go back into court and make meritless motions which everyone knew the judges were going to shoot down.

On the other hand, equity does call for some sort of fix here. Perhaps the General Assembly could be called upon to pass an equity statute:

19.2-5001 Writ of Equity

Under the following conditions, a circuit court court may alter a sentence which it, or a court for which it hears appeals, had previously imposed.

(a) The sentenced individual is not incarcerated or on supervised probation, and
(b) Evidence is provided to the trial court that
(i) the sentenced individual has been convicted more than 10 years previously of a non-violent felony, or (ii) the sentenced individual has been convicted more than 5 years previously of a misdemeanor, and
(b) There is clear and convincing evidence that the sentenced individual has reformed, and
(c) There is clear and convincing evidence that failure to alter the sentence will have serious and continuing detrimental affects on the sentenced individual.

This motion may only be made in a circuit court. Nothing in this statute shall be construed as allowing the circuit court to change the sentence of a violent felony, reduce a felony to a misdemeanor, change the statute under which the defendant was convicted, or expunge a conviction. The Commonwealth shall have the right to appeal any action taken by a trial court under this statute.

It would be a very limited writ, but it would be helpful in this kind of situation.

Off Point: The greatest trick the Devil ever pulled was convincing the world he didn't exist

Hmmm . . . A fallen angel giving an interview to prove he doesn't exist. I guess everybody makes it onto YouTube eventually.